Rivera-Colon: Board's failure to define "symptoms" frustrates judicial review
/Rivera-Colon v. McDonough, 35 Vet.App. 221 (2022)
HELD: BECAUSE VA HASN’T DEFINED THE USUAL “SYMPTOMS” OF GASTRITIS, THE COURT CAN’T REVIEW THE BOARD’S DENIAL OF A HIGHER RATING.
Summary: Veteran sought a rating higher than 10% for gastritis. The regulation provides 10% for “with small nodule lesions, and symptoms”; 30% for “multiple small eroded or ulcerated areas, and symptoms”; and 60% for “severe hemorrhages, or large ulcerated or eroded areas.” 38 C.F.R. § 4.114, DC 7307. VA exams showed complaints of multiple symptoms, such as pain, nausea, vomiting (at least 4x/year, lasting 9 days per episode); vomiting blood 3x/year; 22-pound weight loss; incapacitating episodes; had to stop working because of nausea and vomiting. Board denied a rating higher than 10% under several DCs, but didn’t address extraschedular. Instead, the denial was based on the absence of evidence of “multiple small eroded or ulcerated areas.”
The Court determined that, “Judicial review is frustrated because a critical term is undefined” - and reminded VA that it must define the terms in its regulations, citing Ortiz-Valles v. McDonald, Ray v. Wilkie, Johnson v. Shulkin, Cantrell v. Shulkin. “Symptoms” in the DC is not so broad as to encompass all possible symptoms – so an extraschedular rating is possible. The Board didn’t “explain how it determined what the usual symptoms of gastritis are.”